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State v Kikimbe [2016] PGNC 12; N6180 (12 February 2016)

N6180

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NOS 559 & 560 OF 2015

THE STATE

V

KIANU KIKIMBE

Madang: Cannings J
2015:9th December
2016: 12th February

CRIMINAL LAW – Sentence – Arson – Criminal Code, Section 436(f) – Guilty plea – Offender set fire to and destroyed truck worth K179, 098.00 – Motivated by frustration and anger towards owner of truck, a mining company.

The offender was a member of a group of traditional owners of land now occupied by a mining company. The group was angry with the company and its local management over the alleged failure of the company to provide jobs for local people. The group converged on the mine site, broke through the gate, and damaged and destroyed property. In the course of the rampage, the offender and four other persons wilfully and unlawfully set fire to a refuelling truck worth K179, 800.00. The offender was charged with and pleaded guilty to one count of arson.

Held:

(1) The maximum penalty is life imprisonment and it is useful to apply a starting point of ten years imprisonment.

(2) Mitigating factors are: there was a clear and identifiable reason for the offender doing what he did; it was the venting of frustration, rather than a premeditated attack; it was an isolated incident; the offender cooperated with the Police and made early admissions; he pleaded guilty; he expressed genuine remorse; no prior conviction; he is the only person at this stage to come forward and admit his involvement; he is well regarded in his local community; genuine attempts are being made to restore good relations between the company and the local people.

(3) Aggravating factors are: it was a violent and frightening incident; the incident disturbed the peace in the local community; the property destroyed was of substantial value; such incidents have an immediate adverse impact on both the direct victim, the company, and employees of the company; such incidents have an adverse effect on the country's reputation as a safe and secure society in which to invest and do business; the offender took the law into his own hands.

(4) A sentence of eight years was imposed. The pre-sentence period in custody was deducted and the balance of the sentence was suspended on condition, amongst others, that restitution takes place within six months.

Cases cited

The following cases are cited in the judgment:

Emil Kongian v The State (2007) SC928
Saperus Yalibakut v The State (2006) SC890
The State v Anton Towakra, John Towakra & Carl Mathew (2009) N3845
The State v Francis Kawai Kauke (2013) N5131
The State v Jacob Patore CR 32/2005, 27.03.07
The State v Joe Sekin (2006) N4479
The State v Mondo Baundo (2007) N5045
The State v Oscar Rebon, Alken Rebon and Nautim Benal (2007) N4996
The State v Wai Kibob & Galau Hagui (2008) N3944

SENTENCE

This is a judgment on sentence for arson.

Counsel

F K Popeu, for the State
J Morog, for the offender

12th February, 2016

1. CANNINGS J: Kianu Kikimbe pleaded guilty to one count of arson under Section 436(f) of the Criminal Code. The incident occurred between 6.30am and 9.00 am on Monday 4 August 2014 at the mine site of the Ramu Nickel-Cobalt project at Kurumbukari, Usino-Bundi District, Madang Province. The offender was a member of a group of traditional owners of the land that is now the mine site. The group was angry with the company operating the mine, Ramu Nico (KBK) Ltd and its local management over the alleged failure of the company to provide jobs for local people. The group converged on the mine site, broke through the gate and damaged and destroyed property. In the course of the rampage, the offender and four other persons wilfully and unlawfully set fire to a Beiben refuelling truck worth K179, 800.00, destroying the truck.
   

ANTECEDENTS

2. The offender has no prior conviction.
   

ALLOCUTUS

3. The offender was given the opportunity to say what matters the court should take into account when deciding on punishment:
   

It is true that I did this wrong thing. I ask for the mercy of the Court so that I receive a reasonable period for my sentence. I apologise to God, to the Court, to all the people living at Kurumbukari, to the People of Papua New Guinea and to the company.

OTHER MATTERS OF FACT

4. As the offender has pleaded guilty he will be given the benefit of reasonable doubt on mitigating matters raised in the depositions, the allocutus or in submissions that are not contested by the prosecution (Saperus Yalibakut v The State (2006) SC890). He cooperated with the Police in their investigation and made admissions when formally interviewed. He was working for the company at the time but he felt that the management was giving empty promises to the local people about employment and was secretly bringing in foreign workers to do jobs that the locals could do. He was angry with the mine superintendent who locked himself in his office and refused to come out and explain to the local youths why foreign workers were being brought in.
   

PRE-SENTENCE REPORT

5. A report on the offender was prepared by the Community Based Corrections Service (the Probation Office).
   
   1. He is 22 years old.
   2. He comes from Morinam village and is now living at Enekwae village.
   100. His is not married.
   4. He is the last born in a family of six children.
   5. His father, a retired primary school teacher, and his mother, are alive and supportive of their son.
   6. The offender has a grade 10 education from Brahmin High School. After he left school he was employed as a mechanic with the company which is the victim of his crime.
   7. He lost his job upon commission of the offence.
      
6. He has a good reputation in the local community and has not been in conflict with the law before. This is attested to by the local Village Court Magistrate, his Catholic Church elder and an Immuruba Clan leader and his parents. All those persons were interviewed and expressed the view that, though there were many people involved in the rampage, and many have been charged and committed for trial, Kianu Kikimbe is the first to come forward to admit his involvement and express remorse; and he should be given credit for that.
   
7. A company representative stated that it was a very serious incident involving property damage to the value of more than K1 million. Though no lives were lost, the safety of many employees was put at risk, a lot of production was lost and the property that was destroyed had to be replaced.
   
8. The offender's financial position is not presently strong and he does not by himself have the capacity to provide restitution. However at least three of the local landowner clans are prepared to allow deductions from the royalty payments due to them to compensate the company in the total sum of K179,800.00.
   

SUBMISSIONS BY DEFENCE COUNSEL

9. Mr Morog highlighted the guilty plea, the absence of prior convictions, the presence of remorse, the fact that it was a one-off incident in which there was a degree of de facto provocation and the willingness to pay substantial compensation. The offender made early admissions. Though he committed an unlawful act it was done without criminal intent. He vented his frustrations and those of the local people in an unlawful manner. His guilty plea should be seen in the context of the resumption of peaceful and orderly relations between the company and the local people. The Court should frame the sentence accordingly. An appropriate sentence would be five years, all of which should be suspended on conditions including payment of compensation.
   

SUBMISSIONS BY THE STATE

10. Mr Popeu submitted that the case has many aggravating features. However the State acknowledges the genuine attempts being made to restore good relations between the company and the local people and does not press for a custodial sentence. The head sentence should be seven years imprisonment, all of which can be suspended provided that full restitution is provided to the company within a reasonable time.
    

DECISION MAKING PROCESS

11. To determine the appropriate penalty the following decision making process will be used:
    
    • step 1: what is the maximum penalty?
    • step 2: what is a proper starting point?
    • step 3: what sentences have been imposed for equivalent offences?
    • step 4: what is the head sentence?
    • step 5: should the pre-sentence period in custody be deducted?
    • step 6: should all or part of the sentence be suspended?
      

STEP 1: WHAT IS THE MAXIMUM PENALTY?

12. The offender has been convicted of arson under Section 436(f) of the Criminal Code, which creates the offence of 'wilfully and unlawfully setting fire to a motor vehicle'. Section 436 provides that the maximum penalty for such an offence is life imprisonment. The court has discretion whether to impose the maximum penalty by virtue of Section 19 of the Criminal Code.
    

STEP 2: WHAT IS A PROPER STARTING POINT?

13. Though the Supreme Court has not given detailed sentencing guidelines for arson it has become conventional to use 10 years as a starting point, at least where setting fire to a dwelling house is concerned (Emil Kongian v The State (2007) SC928, The State v Joe Sekin (2006) N4479). I will take the same approach here.
    

STEP 3: WHAT OTHER SENTENCES HAVE BEEN IMPOSED?

14. Before I fix a sentence I will consider sentences handed down in other arson cases in recent times. A comparison of the circumstances of these cases with those of the present case is a useful guide to the appropriate sentence here.
    

NATIONAL COURT SENTENCES FOR ARSON, CANNINGS J

15. It will be observed that the heaviest sentences (10 years each) were in cases that were taken to trial: the offenders had pleaded not guilty. Guilty pleas have resulted in sentences in the range of five to eight years.

STEP 4: WHAT IS THE HEAD SENTENCE?

16. The mitigating factors are:

• there was a clear and identifiable reason for the offender doing what he did;
• it was the venting of frustration, rather than a premeditated attack;
• it was an isolated incident;
• the offender cooperated with the Police and made early admissions;
• he pleaded guilty;
• he expressed genuine remorse;
• no prior conviction;
• he is the only person at this stage to come forward and admit his involvement;
• he is well regarded in his local community;
• genuine attempts are being made to restore good relations between the company and the local people.
  

17. Aggravating factors are:

• it was a violent and frightening incident;
• the incident disturbed the peace in the local community;
• the property destroyed was of substantial value;
• such incidents have an immediate adverse impact on both the direct victim, the company, and employees of the company;
• such incidents have an adverse effect on the country's reputation as a safe and secure society in which to invest and do business;
• the offender took the law into his own hands.
  

18. This is a very serious case that would without the guilty plea warrant a sentence of at least 15 years imprisonment. After comparing this case with the other arson cases I have dealt with, the appropriate sentence is eight years imprisonment.

STEP 5: SHOULD THE PRE-SENTENCE PERIOD IN CUSTODY BE DEDUCTED FROM THE TERM OF IMPRISONMENT?

19. I decide under Section 3(2) of the Criminal Justice (Sentences) Act that there will be deducted from the term of imprisonment the whole of the pre-sentence period in custody, which is three days.

STEP 6: SHOULD ALL OR PART OF THE HEAD SENTENCE BE SUSPENDED?

20. Arson cases are almost invariably crimes of passion. The offence is committed for a clear and identifiable reason: anger, frustration, revenge being the most common. When tensions cool and the offenders realise the seriousness of what they have done they often express remorse and attempt to solve the problem by reconciling with the victim. They apologise, offer to pay compensation and repair the relationship with the victim. If the victim is prepared to be compensated and is willing to accept an apology and forgive the offender, a prison sentence is unnecessary; a fully suspended sentence subject to strict conditions being a much better option.

21. Fortunately for the offender, in this case the victim is not rejecting the idea of reconciliation and compensation. And it appears that the offender's local people are willing to provide restitution to the company on his behalf. 22. The combined effect of those two factors – the attitude of the victim and the realistic prospect of the offender being able to pay compensation of an appropriate amount – is that this is a good case for a non-custodial sentence. I will suspend the entire sentence on the following conditions:

1. there must by 12 August 2016 be provided to the victim, Ramu Nico (KBK) Ltd, the sum of K179,098.00 in the form of restitution for the truck that was the subject of the offence, and upon completion of the payment there shall be a reconciliation ceremony arranged and supervised by the Madang Probation Office, at which there will be light refreshments provided by both the offender and the victim;
   
2. the offender must appear before the National Court at Madang on 11 August 2016 at 9.00 am to address the issue of compliance with condition (1);
   
3. must reside in Madang Province at a specific address notified to the Probation Office and nowhere else except with the written approval of the National Court;
   
4. must perform at least three hours unpaid community work each week, to be arranged through the Probation Office;
   
5. must attend his Church every weekend for service and worship and assist the church in its community activities;
   
6. must report to the Probation Office at Madang at least once each period of three months;
   
7. must not consume alcohol or drugs;
   
8. must keep the peace and be of good behaviour;
   
9. must have a satisfactory probation report submitted to the National Court Registry at Madang and appear before the Court for probation review every period of six months or as and when required by the Court;
   
10. if the offender breaches any one or more of the above conditions, he shall be brought before the National Court to show cause why he should not be detained in custody to serve the rest of the sentence.
    

SENTENCE

23. Kianu Kikimbe, having been convicted of one count of arson contrary to Section 436(f) of the Criminal Code, is sentenced as follows:

Sentenced accordingly.

_____________________________________________________________
Public Prosecutor: Lawyer for the State
Public Prosecutor: Lawyer for the Offender